Inside the Courtroom: Little Stuff that can be Big Stuff

Very few non-lawyers write legal thrillers, but many authors include courtroom scenes in their books. I often find these scenes lacking not in drama or suspense but in authenticity and I suspect the writer is drawing more on what he or she sees on TV than in an actual courtroom.

Following are a few points that might help, and indeed might even provide ideas for potential plot twists.

1. Blocking

“Juror 3 tried to avert her gaze as the defense attorney rose from the table. With his tall, lanky frame he only needed one step to reach the jury rail; he immediately focused those familiar ice-blue eyes directly at her.”

The problem here is one of blocking. The defense never sits at the table closest to the jury; that seat is always reserved for the prosecutor. The theory is, the defendant is dangerous and needs to be as far away from the jury as possible. Also note that in many jurisdictions, particularly if the defendant is coming directly from lock-up, a sheriff’s deputy (or deputy U.S. Marshal in federal courts), after un-cuffing a defendant, will remain standing behind the defendant throughout the proceedings.

2. Bench Conference

“From the back of the courtroom Hal closely watched his wife in the jury box glance at the defense attorney as the jury filed out of the courtroom. The prosecutor had asked for a bench conference with the judge out of the jury’s earshot.”

While dismissing a jury for a bench conference still occurs, most of today’s modern courtrooms are equipped with a white noise feature to remove the time-consuming and inconvenient need to physically remove a jury from the room. An attorney will ask to approach the bench. If a judge agrees, she will flick a switch and loud white noise fills the room so no one can overhear what the judge and the attorneys are discussing.

3. Boring

Despite what the general public sees on TV, most trials are boring. Even when dealing with a sensational issue, the proportion of actual “action” to total court time is very low. Most courtrooms don’t have windows to allow in fresh air and it’s quite common after lunch to see jurors, bailiffs, court reporters, and yes, even judges nodding off. However, note that unlike everyone else, a judge can drink coffee from the bench.

4. The Elephant

Defense Attorney: “So, Madam, you say you saw my client shoot the victim, but isn’t it true that you are hopelessly biased because you like having sex with a goat?”

Prosecutor: “Objection!”

Judge: “Sustained. The jury will disregard counsel’s question about the witness having sex with a goat.”

This is sometimes called an “elephant.” The name comes from the idea of telling someone, “Whatever you do, don’t think of an elephant.” Of course, the first thing that flashes into our minds is an elephant. So trial attorneys (mostly criminal defense attorneys as prosecutors are held to a higher standard) will often use an elephant to plant in the jury’s mind an idea that he otherwise would not be able to admit into evidence. An elephant is a great tool to use in writing a courtroom scene.

5. Closing Argument

Because protagonists are more often defense attorneys than prosecutors, we often will read a rousing closing argument near the end of the book that persuades a jury the defendant is innocent. The problem is, we rarely read the prosecutor’s rebuttal and often readers don’t realize the prosecutor has two shots to address the jury. But if a writer includes a rebuttal it could deflate the drama of the hero defense counsel’s soaring oratory.

There are at least two ways to deal with this problem.

First, after the compelling defense closing a writer could acknowledge the prosecutor’s right by simply mentioning it in passing. “Jack thanked the jury and sat down. He paid no attention to the prosecutor’s feeble rebuttal and judging from the looks on the jurors’ faces they didn’t either.”

Second, to be really authentic, a writer could include a routine staple of a defense attorney’s closing argument:

“Ladies and gentlemen, I only have one chance to address you while Mr. Smith gets to speak to you again. I know it seems unfair and in many ways it is. But the reason is that Mr. Smith has to shoulder the overwhelming burden of convincing you of Mr. Jones’ guilt beyond a reasonable doubt. While Mr. Smith is talking, you know I’m going to be itching to jump up and correct him but the judge won’t allow me. So I’m asking, when you go back into that jury room, to appoint a few of you to put forth what you know I would say if I were allowed. To stand in my shoes. To make this fair.”

6. Juries

Speaking of juries, if you ever have an opportunity to serve on a jury, take it. I sat on a jury in a civil case and I learned what many attorneys suspected all along—juries pay little attention to the legal instructions given by the judge before deliberation. My fellow jurors made their decision based on how a witness was dressed, the grumpy attorney, what they thought the judge wanted them to do, their feelings about fellow jurors and their need to make a quick decision so they could pick up their child from daycare. Any writer describing what is occurring inside the jury room might want to keep this real life picture in mind.

7. Memory

A very common cross-examination question: “Madam, how is it you testified you remember what happened two years ago but when I asked you about the meeting just last week your memory suddenly failed?”

If you are opposing counsel, how do you explain this seeming memory disparity to the jury? Again, a common staple:

“Ladies and gentlemen, I bet you all remember where you were when you saw the TV image of those airplanes flying into the twin towers. Or, for you older folks, what you were doing when you heard President Kennedy was shot. Or your wedding day, or the birth of your first child. But do you remember which shoe you put on first this morning? Here’s the thing. We remember things that are important to us at the time. When Mary was assaulted two years ago, that was one of the most indelible events in her life, and she remembers every detail.”

Finally, at the risk of stating the obvious, before writing a courtroom scene, go sit in a courtroom for a day. You’ll conclude two things: first, courtrooms are filled with many sad people; and second, our legal system is the worst in the world except for everywhere else.

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